0120093602
12-18-2009
Ralph C. Grissett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ralph C. Grissett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093602
Agency No. 1G-787-0023-09
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated August 17, 2009, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In the instant complaint, filed on July 27, 2009, complainant alleged
that he was subjected to discrimination on the bases of race, color,
disability, age and in reprisal for prior EEO activity when:
on April 8, 2009 and ongoing, he became aware of illegal promotions
of other employees and also that management placed individuals on the
in-craft promotion eligibility roster in violation of Postal policy.
In its August 17, 2009 final decision, the agency dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that
it was untimely filed. The agency determined that complainant received
the Notice of Right to File a Discrimination Complaint (hereinafter
"Notice") on July 8, 2009, as confirmed by the Postal Service Track and
Confirm computerized tracking system, but that complainant waited more
than fifteen days to file the formal complaint.
The agency also dismissed the instant complaint on the alternative grounds
of failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
Specifically, the agency stated that complainant's complaint was too
vague to explain sufficiently how he suffered any harm or loss with
respect to a term, condition or privilege of his employment. The agency
further noted that complainant does not identify specific promotions or
details he was allegedly denied.
On appeal, complainant argues that management "did not follow the
Maintenance Selective System in accordance with the E1304 Handbook.
An violated the Promotional Register Process." Complainant further argues
that the EEO Counselor sent his information to another employee's address
which delayed the processing of the information to support his case.
In response, the agency argues that a review of the record reflects that
the Notice was sent to complainant's correct address of record and was
signed by an individual with the same surname as complainant.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails to
comply with the applicable time limits contained in 29 C.F.R. � 1614.106,
which, in turns, requires the filing of a formal complaint within fifteen
(15) days of receiving the notice of the right to do so.
The record contains a copy of the certified-mail return receipt card
reveals that the final decision was received at complainant's address
of record on July 8, 2009. The record reflects that a member of
complainant's household signed and dated the receipt as "7-8-09."
A review of the Notice reveals that the agency properly advised
complainant that he had fifteen (15) calendar days from the date of the
Notice to file a timely formal complaint. Therefore, in order to be
considered timely, complainant had to file his complaint no later than
July 23, 2009.
The Commission has held that receipt of a document at complainant's
correct address, i.e., address of record, by a member of the complainant's
family or household of suitable age and discretion creates a rebuttal
presumption of constructive receipt. See Fontanella v. General
Services Administration, EEOC Request No. 05940131 (April 10, 1995).
Complainant has not offered adequate justification, for an extension of
the applicable time limit for filing his complaint, and has not offered
any evidence to rebut the presumption of constructive receipt.
Because we affirm the agency's dismissal of the instant complaint for
the reason stated herein, we find it unnecessary to address alternative
dismissal grounds (i.e. failure to state a claim).
Accordingly, the agency's decision to dismiss the formal complaint was
proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 18, 2009
__________________
Date
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0120093602
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093602